Marshall v. Wimes
| Decision Date | 25 May 2001 |
| Docket Number | No. S-00-199.,S-00-199. |
| Parties | Scott L. MARSHALL, Appellant, v. Edward WIMES, Director, State of Nebraska, Department of Motor Vehicles, Appellee. |
| Court | Nebraska Supreme Court |
David W. Jorgensen, Kearney, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant.
Don Stenberg, Attorney General, and Kyle C. Dahl, for appellee.
Scott L. Marshall appeals from the district court's affirmance of the order of the director of the Department of Motor Vehicles (DMV) revoking Marshall's operator's license. The issue presented in this appeal is whether the district court erred in affirming the revocation of Marshall's operator's license in light of the DMV's alleged due process violation in refusing to issue a subpoena duces tecum directing the individual who tested Marshall's blood alcohol level to appear at Marshall's revocation hearing.
The findings of fact set forth by the administrative hearing officer, and adopted by the director of the DMV and the district court, are not at issue in this appeal. Those findings of fact establish that on July 10, 1999, in O'Neill, Nebraska, a vehicle operated by Marshall was stopped for speeding. Observing Marshall's lack of coordination, the investigating officer asked if Marshall had been drinking, and Marshall admitted to consuming four or five drinks. Marshall failed three of the five field sobriety tests that were administered, and Marshall was arrested and taken to Saint Anthony's Hospital, where a sample of his blood was taken for testing. The result of that test, conducted by the Department of Health and Human Services (DHHS), indicated a blood alcohol concentration of .166 grams of alcohol per 100 milliliters of blood. The DMV was notified, and a notice of revocation was issued. Marshall petitioned for an administrative rules of evidence hearing, which was held on August 13.
Based on the evidence adduced at the hearing, the hearing officer recommended revocation of Marshall's motor vehicle operator's license. On August 25, 1999, the director of the DMV adopted the hearing officer's recommendation and revoked Marshall's license for a period of 1 year. Marshall appealed to the district court, which affirmed the determination of the director. Marshall timely appealed.
Marshall's argument on appeal is based on the proceedings before the DMV prior to Marshall's revocation hearing. Marshall's petition for an administrative hearing was filed on August 2, 1999, and the DMV's notice of hearing was filed on August 3. Marshall immediately filed a praecipe for subpoena duces tecum, directed at the DHHS employee who tested Marshall's blood. The subpoena would have directed the witness to appear at Marshall's hearing and to bring with her a sample of Marshall's blood in her possession as well as records relating to the calibration of the equipment used to test Marshall's blood. Marshall also sought a subpoena to compel the witness to appear for a deposition prior to the hearing.
The praecipe was received by the DMV on August 5, 1999, and was denied on the same day because it did not comply with 247 Neb. Admin.Code, ch. 1, § 009.02 (1998), which provides that Marshall's request to depose the witness was also denied on the basis that the applicable administrative regulations did not provide for a subpoena to compel attendance at a deposition. The record reflects that Marshall was aware of the identity of the witness prior to the filing of his petition for hearing, but had not yet been informed of the time or location of the hearing.
Marshall argued before the hearing officer and the district court that the director's application of § 009.02 in the instant case violated Marshall's due process rights.
Marshall assigns, restated, that the district court erred in failing to find that the refusal of the director to issue Marshall's subpoena duces tecum denied Marshall due process of law and was an abuse of discretion.
Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency. Lackawanna Leather Co. v. Nebraska Dept. of Rev., 259 Neb. 100, 608 N.W.2d 177 (2000); A & D Tech. Supply Co. v. Nebraska Dept. of Revenue, 259 Neb. 24, 607 N.W.2d 857 (2000). A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Benitez v. Rasmussen, 261 Neb. 806, 626 N.W.2d 209 (2001); Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623 N.W.2d 672 (2001). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.
Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Benitez v. Rasmussen, supra.
Marshall argues that he was deprived of due process of law by the director's refusal to issue Marshall's requested subpoena. While Marshall does not specify whether he relies on the state or federal Constitution, this court has observed that the due process requirements of Nebraska's Constitution are similar to those of the federal Constitution. See Wollenburg v. Conrad, 246 Neb. 666, 522 N.W.2d 408 (1994).
Nebraska law provides that in a contested case before an administrative agency, opportunity shall be afforded to all parties to the proceeding to present evidence and argument. See Neb.Rev.Stat. § 84-913 (Reissue 1999). To that end, the Legislature has provided that an administrative hearing officer may issue subpoenas and discovery orders. See Neb.Rev.Stat. § 84-914(2) (Reissue 1999). The director of the DMV is responsible for the adoption and promulgation of rules and regulations to govern the conduct of a license revocation hearing and ensure that the hearing will proceed in an orderly manner. See Neb.Rev.Stat. § 60-6,205(7) (Reissue 1998). The DMV adopted § 009.02 pursuant to this authority. Marshall argues that the director's strict enforcement of this regulation against Marshall deprived him of procedural due process.
Procedural due process limits the ability of the government to deprive people of interests which constitute "liberty" or "property" interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard. Benitez v. Rasmussen, supra; In re Interest of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999). The first step in a due process analysis is to identify a property or liberty interest entitled to due process protections. Brock v. Roadway Express, Inc., 481 U.S. 252, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987).
It is well established that suspension of issued motor vehicle operators' licenses involves state action that adjudicates important property interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the 14th Amendment. See, Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). See, also, Illinois v. Batchelder, 463 U.S. 1112, 103 S.Ct. 3513, 77 L.Ed.2d 1267 (1983); Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Gausman v. Department of Motor Vehicles, 246 Neb. 677, 522 N.W.2d 417 (1994).
Once it is determined that due process applies, the question remains what process is due. Brock v. Roadway Express, Inc., supra. Though the required procedures may vary according to the interests at stake in a particular context, the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Id. Thus, before a state may deprive a motorist of his or her driver's license, that state must provide a forum for the determination of the question and a meaningful hearing appropriate to the nature of the case. See, Bell v. Burson, supra; Wollenburg v. Conrad, supra. In proceedings before an administrative agency or tribunal, procedural due process requires notice, identification of the accuser, factual basis for the accusation, reasonable time and opportunity to present evidence concerning the accusation, and a hearing before an impartial board. Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997). See, also, McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995) ().
The issue presented by Marshall's argument is whether he had the opportunity to present evidence concerning the accusation, given the director's refusal to issue the requested subpoena. Specifically, the question is whether due process was violated by the director's refusal to issue a subpoena where the praecipe was received by the DMV 8 days prior to the revocation hearing and only 3 days after the date required by § 009.02.
In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the U.S. Supreme Court set forth a number of factors to be considered in resolving an inquiry into the specific dictates of due process: first, the private interest that will be affected...
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